Duran v. Town of Cicero
| Decision Date | 16 April 2012 |
| Docket Number | No. 01 C 6858,01 C 6858 |
| Parties | ALEJANDRO DURAN, et al., Plaintiffs, v. TOWN OF CICERO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
(Rulings on Attorneys' Fees and Costs Petitions)
Petitions for attorneys' fees and costs in this civil rights case have been under advisement awaiting the outcome of the parties' appeals. The appeals have now been decided. The plaintiffs' verdicts challenged by the Town were all affirmed, and the cross-appeals by some of the plaintiffs were rejected.1 Duran v. Town of Cicero, 653 F.3d 632 (7th Cir. 2011). We will now address the pending petitions for fees and costs.
BACKGROUND
This is a civil rights action brought pursuant to 42 U.S.C. § 1983, alleging federal false arrest, excessive force, and equal protection violations as well as state-law claims of malicious prosecution, battery, hate crimes, intentional infliction ofemotional distress and spoliation of evidence. The plaintiffs are 78 persons who were present at a baptismal party held at the home of Alejandro and Maria Concepcion Duran in Cicero, Illinois on September 2, 2000. The defendants are seventeen Cicero police officers and the Town itself.
There were about 100 people at the party, and the Durans provided food and drink for their guests, including beer and wine. At about 9:30 p.m. the Cicero police department received a telephone call from a neighbor complaining about the party. There were several visits to the premises by various police officers who requested that the noise level be reduced. The party guests initially agreed to lower the volume of the music, but when another complaint was made, prompting further visits by the officers, the conversations became heated. Eventually a full-scale riot ensued, initiated, according to the plaintiffs, by the officers' unprovoked use of batons and pepper spray and, according to the officers, by the unprovoked throwing of bottles and other missiles at the officers. A rich exchange of foul language and ethnic slurs resounded throughout the melee.2
Some of the plaintiffs alleged that they were beaten and/or pepper sprayed in the yard, without cause. Many of the plaintiffs, including some children, were directed by the officers to go into the Duran house and remain there. Many of the guests in the housemade federal and state claims alleging that two of the officers, William Peslak and Robert DeCianni, sprayed the interior of the house with pepper spray, leaving them gasping for air and causing them extreme physical discomfort and emotional distress.
The officers arrested seven of the plaintiffs and took them to the Town police station. Three of the arrested plaintiffs were not prosecuted, but the four Duran brothers were prosecuted on charges of battery and obstructing or resisting a police officer. The case went to a jury trial, and the Durans were all found not guilty.
The basic position of the defendant officers was that they used no more force than was reasonably necessary to defend themselves against the violent acts of the Durans and their guests and to arrest the plaintiffs who were assaulting them. The defendants Peslak and DeCianni denied that they sprayed the interior of the house.
After the complaint was filed, there was a long period of pretrial discovery, much of it concerned with identification of the officers who allegedly assaulted the plaintiffs. There were numerous discovery disputes. Considerable time was spent on the defendants' motions for summary judgment, and we granted summary judgments to a number of individual defendants on various claims. We denied the individual defendants' motions based on their defenses of qualified immunity, and they took an interlocutoryappeal. The Seventh Circuit affirmed as to most of the claims, but reversed the denial of qualified immunity as to four claims and remanded the case with instructions to enter judgments accordingly. Duran v. Sirgedas, 240 F. App'x 104 (7th Cir. 2007).
A six-week jury trial took place in January and February 2008. The jury returned verdicts in favor of some of the plaintiffs on most of their federal and state-law claims and verdicts in favor of the defendants on other federal and state-law claims. The jury found against the group of plaintiffs whose only claims were that the defendants Peslak and DeCianni had pepper-sprayed them inside the Duran house.
The total amount of all judgments against the individuals and the Town was $4,843,400.00. Of that amount, the Town has paid $3,073,400.00 plus interest, for a total of $3,163,436.38. The Town appealed judgments against it totaling $1,770,000, and, as indicated above, the judgments were affirmed.
PLAINTIFFS' MOTION FOR ATTORNEYS' FEES
The plaintiffs are seeking attorneys' fees in the amount of $2,228,017.50 and costs of $157,901.47 as of July 3, 2008. The plaintiffs' principal attorney, David A. Cerda, is requesting $1,131,300, a little over fifty percent of the total. (Parties' Local Rule 54.3 Joint Statement at 1.)
Defendants object to both the fees and costs claimed by the plaintiffs, and the parties have been unable to reach agreement onthe appropriate amounts. Therefore, they followed the procedure outlined in Local Rule 54.3 and have filed a Joint Statement setting forth their positions, as well as extensive briefs and voluminous exhibits.
THE CONTINGENT-FEE QUESTION
The plaintiffs' attorneys claim to have had a forty percent contingent-fee agreement (or agreements) with the plaintiffs. At the time the Town's insurance carrier paid the judgments against the individual defendants, plaintiffs' attorneys collected the sum of $1,040,000 as their claimed forty percent share. Defendants argue that, having collected this contingent fee, the attorneys are not entitled to anything more. They point out that under the fee statute, 42 U.S.C. § 1988, the prevailing civil rights party, not the lawyer, is eligible for an award of attorneys' fees. Defendants contend that if the attorneys are seeking the award for the benefit of the clients, that would be appropriate, but if they are seeking it for themselves, that would be an additional fee to which they are not entitled. Defendants have repeatedly demanded a copy of the contingent-fee agreement, and in fact we ordered it produced.3 After initially contending that the Town had no right to see the fee agreement, Mr. Cerda, after being ordered to produce it, stated that it is "missing." Defendants argue:
Absent the agreement, we do not know if Plaintiff's[sic] counsel is filing this fee petition on behalf of the Plaintiffs to reimburse them for the fees they have already paid. Alternatively, we do not know if Plaintiff's [sic] counsel is seeking a double recovery.
Mot. (hereinafter ) at 2.)
Mr. Cerda's failure to produce the contingent-fee agreement is not the problem that the Town believes it is.4 "The contingent fee that an attorney earns from his client and the statutory fee that an attorney recovers from the losing party represent distinct entitlements." Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 640 (7th Cir. 2011). "[D]istrict courts . . . should view these fees as distinct and not allow a contingent fee to influence the determination of the reasonableness of an hourly rate." Id. at 642.
THE BASIC LAW CONCERNING § 1988 FEE AWARDS
Both sides refer repeatedly to the case of Hensley v. Eckerhart, 461 U.S. 424 (1983), and appropriately so, because it is the Supreme Court case that provides the rules for determining appropriate fees in civil rights cases:
Id. at 433-34 (quotation marks and citation omitted). The specific issue in Hensley was whether "a partially prevailing plaintiff may recover an attorney's fee for legal services on unsuccessful claims." Id. at 426. The plaintiffs had brought suit against officials at the forensic unit of a Missouri state hospital and members of the Missouri Mental Health Commission alleging that patients in the forensic unit were subjected to treatment and conditions that violated their federal constitutional rights in regard to six general areas: physical environment; individual treatment plans; least restrictive environment; visitation, telephone and mail privileges; seclusion and restraint; and finally, staffing, which was alleged to be insufficient. Id. at 426-28. After a bench trial, the district court found in favor of the plaintiffs on the first five general areas, but as to staffing, found that levels were "minimally adequate" and denied relief as to that claim. Id. The plaintiffs filed a petition for fees under § 1988, and the parties differed as to whether hours spent on theunsuccessful staffing claim should be deducted in determining the award. The district court sided with the plaintiffs and awarded a fee based on all hours reasonably expended, without deduction for time spent on the staffing claim. The Court of Appeals affirmed, but the Supreme Court...
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Adamik v. Motyka, 12 C 3810
...for an hourly rate as high as any other attorney handling § 1983 cases, and probably higher than most." Duran v. Town of Cicero, 2012 WL 1279903, at *20 (N.D. Ill. Apr. 16, 2012); see also R. 195 at 6-7 (collecting cases). Loevy's rate is therefore "next-best evidence" of an appropriate mar......